People of Michigan v. Marcus Kermit Hines ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 30. 2015
Plaintiff-Appellee,
V No. 320623
Macomb Circuit Court
MARCUS KERMIT HINES, LC No. 2013-001631-FH
Defendant-Appellant.
Before: METER, P.J., and CAVANAGH and WILDER, JJ.
PER CURIAM.
Defendant appeals, as of right, following his conviction by a jury of unlawful
imprisonment, MCL 750.349b, and felonious assault, MCL 750.82. The trial court sentenced
defendant as a fourth habitual offender, MCL 769.12, to concurrent prison terms of 50 to 180
months for the unlawful imprisonment conviction, and 12 to 48 months for the felonious assault
conviction. We affirm defendant’s convictions and sentences, but remand for correction of a
clerical error in the judgment of sentence.1
The prosecution charged defendant with felonious assault and unlawful imprisonment of
defendant’s estranged wife, Ruth Zolman, in their Warren home on March 12, 2013. At the time
of the offense, defendant had moved out of the marital home, where defendant’s 23-year-old son,
Orlando Neal, was also living. The prosecution presented evidence that, at approximately 4:00
a.m., defendant, armed with a machete, entered Zolman’s bedroom, where Neal and Zolman
were in bed together, threatened to kill Zolman while swinging the knife, and struck Zolman’s
shoulder and head. Defendant would not allow Zolman and Neal to leave the house for several
hours, refusing Zolman’s requests to go to the hospital, and threatened that he would kill Zolman
1
Although the parties do not raise the issue, we note that defendant’s judgment of sentence
incorrectly indicates that the jury found him not guilty of felonious assault. The jury’s verdict
form and the verdict announced on the record at trial both indicate that the jury found defendant
guilty of felonious assault, and the trial court sentenced defendant on that offense at sentencing.
Pursuant to MCR 7.216(A)(7), we remand this case to the trial court for the limited purpose of
correcting the judgment of sentence to reflect defendant’s conviction and sentence for felonious
assault. MCR 6.435(A).
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if either Zolman or Neal attempted to contact the police. At approximately 6:00 p.m., defendant
allowed Neal to leave to go to work, again threatening to kill Zolman if Neal contacted the
police. At approximately 9:00 p.m., defendant left the home. Zolman contacted the police on
the following morning. Defendant was apprehended on April 5, 2013.
The defense theory at trial was that Zolman and Neal, the only eyewitnesses, were not
credible, that defendant had a right to be on his own property, and that Zolman’s report of the
incident to the police was false.
During the trial, the prosecutor sought to admit a photograph taken by the evidence
technician of a shoeprint from Zolman’s backyard. After defendant objected, an exchange
occurred in the jury’s presence between defendant, the prosecutor, and the judge, concerning the
admissibility of the photograph. Ultimately, the shoeprint was not admitted into evidence.
Additionally, defendant objected during trial that three unsigned letters offered as
evidence by the prosecutor were not sufficiently authenticated for admission. The trial court
permitted the letters into evidence over defendant’s objections. Following their deliberations, the
jury convicted defendant as charged. Defendant filed a motion for a new trial, which was denied
by the trial court.
I
On appeal, defendant argues that his conviction of unlawful imprisonment is against the
great weight of the evidence, and that he is entitled to a new trial on this charge. We disagree.
We review a trial court’s decision on a motion for a new trial for an abuse of discretion. People
v Miller, 482 Mich. 540, 544; 759 NW2d 850 (2008). A trial court abuses its discretion when its
“decision falls outside the range of principled outcomes.” People v Musser, 494 Mich. 337, 348;
835 NW2d 319 (2013).
In evaluating whether a verdict is against the great weight of the evidence, we consider
whether the evidence preponderates so heavily against the verdict that it would be a miscarriage
of justice to allow the verdict to stand. People v Lemmon, 456 Mich. 625, 627; 576 NW2d 129
(1998); People v Lopez, 305 Mich. App. 686, 696; 854 NW2d 205 (2014). A person commits
unlawful imprisonment if he knowingly restrains a person by means of a weapon or dangerous
instrument. MCL 750.349b(1)(a). The term “restrain” is defined to mean “to forcibly restrict a
person’s movements or to forcibly confine the person so as to interfere with that person’s liberty
without that person’s consent or without lawful authority.” MCL 750.349b(3)(a). The restraint
does not have to exist for any particular length of time and may be related or incidental to the
commission of other criminal acts; the restraint may be temporary. MCL 750.349b(3)(a); People
v Railer, 288 Mich. App. 213, 218-219; 792 NW2d 776 (2010). In this case, Zolman and Neal
each testified that defendant forced his way into the home armed with a machete, cut Zolman,
kept the machete with him at all times during the episode and refused to allow them to leave the
house for several hours, including refusing Zolman’s request to go to the hospital, and threatened
to kill Zolman if she or Neal attempted to leave or contact the police. The jury could conclude
from this evidence that the victims could have reasonably considered defendant’s threats to be
legitimate and that the victims were restricted by them. Furthermore, the evidence was sufficient
to establish that defendant knowingly restrained the victims. As such, the evidence does not
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preponderate so heavily against the jury’s verdict that it would be a miscarriage of justice to
allow the verdict to stand. Lemmon, 456 Mich. at 647.
We reject defendant’s argument that Zolman’s and Neal’s testimony was so unbelievable
that the jury was not justified in finding him guilty of unlawful imprisonment. Questions
regarding the credibility of witnesses are not sufficient grounds for granting a new trial.
Lemmon, 456 Mich. at 643. We defer to the jury’s determination of credibility “unless it can be
said that directly contradictory testimony was so far impeached that it ‘was deprived of all
probative value or that the jury could not believe it,’ or contradicted indisputable physical facts
or defied physical realities. . . .” Id. at 644-646 (citation omitted). That clearly is not the case
here. The jury’s verdict is not against the great weight of the evidence. Consequently, the trial
court did not abuse its discretion in denying defendant’s motion for a new trial.
II
Defendant raises additional issues in a pro se supplemental brief filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4. We first address defendant’s
argument on appeal that the trial court erred in admitting into evidence, over defendant’s
objections, an unsigned letter offered by the prosecutor because it was not sufficiently
authenticated. Defendant’s counsel objected at trial to the admission of three unsigned letters,
however, and defendant fails to identify in his brief which of the three letters he challenges as
improperly admitted. We therefore consider the issue abandoned [“An appellant may not merely
announce his position and leave it to this Court to discover and rationalize the basis for his
claims.” People v Kelly, 231 Mich. App. 627, 640-641; 588 NW2d 480 (1998)].
Defendant’s remaining claims were not raised below, and therefore, they are unpreserved.
We review unpreserved issues for plain error affecting defendant’s substantial rights. People v
Carines, 460 Mich. 750, 752-753, 763-764; 597 NW2d 130 (1999). Additionally, although
defendant filed a motion for a new trial in the lower court, he failed to raise an ineffective
assistance of counsel claim in connection with that motion, or request a Ginther2 hearing.
Therefore, our review of defendant’s ineffective assistance of counsel claims is limited to
mistakes apparent on the record. People v Sabin (On Second Remand), 242 Mich. App. 656, 658-
659; 620 NW2d 19 (2000).
A
Defendant argues that his constitutional right to present a defense was violated when the
trial court denied him the opportunity to timely file a notice of alibi and present his alibi witness.
We disagree. A criminal defendant has a constitutional right to a “meaningful opportunity to
present a complete defense.” US Const, Am VI; Const 1963, art 1 § 20; People v King, 297
Mich. App. 465, 473; 824 NW2d 258 (2012). However, he must still comply with procedural and
evidentiary rules established to assure fairness and reliability in the verdict. Id. at 474. As
defendant acknowledges, he did not file a notice of alibi, which he was required to do under
2
People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973).
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Michigan law in order to present an alibi defense. MCL 768.20. Consequently, defendant’s
contention that he was deprived of the opportunity to present a defense is without merit.
B
Defendant argues that the prosecutor knowingly used perjured testimony to obtain a
conviction, and the police failed to gather and preserve potentially exculpatory evidence, both in
violation of his constitutional right to due process. The record does not support defendant’s
allegations.
Defendant highlights discrepancies in Zolman’s testimony and in other witness testimony
regarding the type of instrument that caused Zolman’s lacerations and the amount of blood at the
scene to argue that the prosecutor knowingly used perjured testimony. However, the
inconsistencies listed by defendant do not establish that the prosecutor knowingly used perjured
testimony to obtain defendant’s conviction. People v Gratsch, 299 Mich. App. 604, 619; 831
NW2d 462 (2013), vacated in part on other grounds 495 Mich. 876 (2013); People v Parker, 230
Mich. App. 677, 690; 584 NW2d 753 (1998). Although Zolman’s trial testimony about the
amount of blood at the scene differed from the amount described by the responding police
officers, and there were questions raised about the nature of Zolman’s lacerations, there is no
indication that the prosecutor sought to conceal these inconsistencies from defendant. Testimony
that conflicts with other witnesses’ testimony does not lead to the conclusion that the prosecutor
knowingly used perjured testimony. The prosecution is not obligated to disbelieve its own
witness merely because the witness’s testimony is contradicted by testimony from another
witness. See People v Lester, 232 Mich. App. 262, 278-279; 591 NW2d 267 (1998), overruled in
part on other grounds in People v Chenault, 495 Mich. 142; 845 NW2d 731 (2014). Defendant’s
argument does not involve an issue of perjury, but of credibility. Defense counsel fully explored
the credibility issues and the factual disputes presented by Zolman’s testimony and the testimony
of other prosecution witnesses. The jury was free to either believe or disbelieve their trial
testimony, in whole or in part. See People v Wolfe, 440 Mich. 508, 514; 489 NW2d 748 (1992),
amended 441 Mich. 1201 (1992). We therefore reject this claim because defendant’s right to due
process was not violated by a knowing use of perjured testimony by the prosecutor.
Defendant also argues that the police should have developed other evidence, including
analyzing blood samples found at the scene. In a related claim, defendant contends that, by
requiring him to “preserve or gather” that evidence, the prosecution improperly shifted the
burden of proof. Defendant confuses the duty to disclose evidence with a duty to find evidence
to disprove a victim’s claims. See People v Coy (After Remand), 258 Mich. App. 1, 22; 669
NW2d 831 (2003). In the absence of “a showing of suppression of evidence, intentional
misconduct, or bad faith,” due process does not require that the prosecution seek and find
exculpatory evidence or test evidence for a defendant’s benefit. Id. at 21. There is no basis in
the record for finding any bad faith or intentional misconduct by the police or the prosecution, or
that any evidence was suppressed. Furthermore, there is no requirement that the prosecution
must negate every reasonable theory consistent with a defendant’s innocence. People v
Henderson, 306 Mich. App. 1, 9; 854 NW2d 234 (2014). We therefore reject these claims,
because defendant’s right to due process was not violated by the police investigation or the
prosecution.
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C
Defendant argues that the prosecutor abused his discretion in charging defendant with
unlawful imprisonment, MCL 750.349b, and assault with intent to do great bodily harm less than
murder, MCL 750.84, and that as a result, he was denied his constitutional rights of due process
and equal protection. We disagree.
“[T]he decision whether to bring a charge and what charge to bring lies in the discretion
of the prosecutor.” People v Venticinque, 459 Mich. 90, 100; 586 NW2d 732 (1998). The
prosecutor has broad discretion to bring any charge supported by the evidence. People v
Nichols, 262 Mich. App. 408, 415; 686 NW2d 502 (2004). A prosecutor abuses his or her
discretion only if “a choice is made for reasons that are ‘unconstitutional, illegal, or ultra vires.’ ”
People v Barksdale, 219 Mich. App. 484, 488; 556 NW2d 521 (1996).
The prosecutor’s decision to charge defendant with unlawful imprisonment is clearly
supported by the evidence that defendant, while armed with a machete, restricted Zolman to the
house for several hours by threatening to kill her if she or Neal attempted to leave or contact the
police. See MCL 750.349b; Railer, 288 Mich. App. at 218-219. Additionally, there was evidence
that defendant swung the machete at Zolman, striking her twice, while repeatedly announcing his
intent to kill her. These facts support the prosecutor’s decision to charge defendant with assault
with intent to do great bodily harm less than murder, MCL 750.84. See People v Stevens, 306
Mich. App. 620, 628-629; 858 NW2d 98 (2014). Defendant does not present any evidence
suggesting that the charges were brought for an unconstitutional, illegal, or other improper
reason. Therefore, defendant has not established that he was denied due process or equal
protection because of the charges levied against him. Accordingly, we reject this claim of error.
D
Defendant argues that the jury’s verdict was tainted because the trial court did not excuse
the jurors during the parties’ arguments regarding the prosecution’s unsuccessful motion to admit
a photograph of a shoeprint. We disagree.
While it is preferable for arguments concerning the admission of exhibits to take place
outside of the jury’s presence, MRE 103(c), defendant fails to show that the fact that the parties’
arguments and the trial court’s evidentiary ruling concerning the photograph occurred in the
jury’s presence resulted in prejudice to the defendant, Carines, 460 Mich. at 763. Since the trial
court declined to admit the evidence, the express message conveyed to the jury was that the
photographic exhibit was not relevant for its consideration during deliberations. Further, the trial
court instructed the jurors that they were to base their verdict “only on the evidence that has been
properly admitted in this case” and that the statements and arguments of the attorneys were not
evidence. Juries are presumed to follow their instructions. People v Roscoe, 303 Mich. App. 633,
646; 846 NW2d 402 (2014). Moreover, given the testimony of Zolman and Neal identifying
defendant as the perpetrator, defendant has not established that any error in the jury hearing that
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an unidentified, common, partial shoe impression observed in Zolman’s backyard affected the
outcome of the proceedings. Carines, 460 Mich. at 763.
E
Defendant argues that his constitutional rights were violated because his jury was
not representative of a fair cross-section of the community. We disagree.
A criminal defendant is entitled to an impartial jury drawn from a fair cross-section of the
community. Taylor v Louisiana, 419 U.S. 522, 538; 95 S. Ct. 692; 42 L. Ed. 2d 690 (1975). To
establish a prima facie violation of the fair cross-section requirement, a defendant has the burden
of proving the following:
(1) that the group alleged to be excluded is a “distinctive” group in the
community; (2) that the representation of this group in venires from which juries
are selected is not fair and reasonable in relation to the number of such persons in
the community; and (3) that this under-representation is due to systematic
exclusion of the group in the jury-selection process. [People v Bryant, 491 Mich.
575, 596-597; 822 NW2d 124 (2012), quoting Duren v Missouri, 439 U.S. 357,
364; 99 S. Ct. 664; 58 L. Ed. 2d 579 (1979).]
As an African-American, defendant is a member of a “distinct group” for purposes of the
fair cross-section requirement. Id. at 598. Defendant has failed, however, to demonstrate a
systematic exclusion of African-Americans in Macomb County’s jury-selection process.
Defendant has not presented any data showing the proportion of African-Americans within the
community or in jury venires in general. Defendant has also failed to adequately demonstrate a
reason for the alleged underrepresentation beyond forces outside the criminal justice system.
People v Traylor, 245 Mich. App. 460, 464; 628 NW2d 120 (2001). Consequently, defendant has
failed to establish a prima facie violation of the fair cross-section requirement.
F
Defendant argues that a new trial is warranted because his constitutional right to effective
counsel was denied when defense counsel failed to (1) present an alibi defense and call
witnesses, (2) argue that the verdict was “tainted” by the shoeprint discussion, and (3) object to
the jury composition. We disagree.
To establish ineffective assistance of counsel, defendant first must show that counsel’s
performance fell below an objective standard of reasonableness. People v Armstrong, 490 Mich.
281, 289-290; 806 NW2d 676 (2011). In doing so, defendant must overcome the strong
presumption that counsel’s assistance was sound trial strategy. Id. Second, defendant must
show that, but for counsel’s deficient performance, it is reasonably probable that the result of the
proceeding would have been different. Id. Effective assistance of counsel is presumed and
defendant bears a heavy burden of proving otherwise. People v LeBlanc, 465 Mich. 575, 578;
640 NW2d 246 (2002). “Reviewing courts are not only required to give counsel the benefit of
the doubt with this presumption, they are required to ‘affirmatively entertain the range of
possible’ reasons that counsel may have had for proceeding as he or she did.” People v Gioglio
(On Remand), 296 Mich. App. 12, 22; 815 NW2d 589 (2012), vacated in part on other grounds
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493 Mich. 864 (2012). “[A] reviewing court must conclude that the act or omission of the
defendant’s trial counsel fell within the range of reasonable professional conduct if, after
affirmatively entertaining the range of possible reasons for the act or omission under the facts
known to the reviewing court, there might have been a legitimate strategic reason for the act or
omission.” Id. at 22-23.
First, defendant makes several claims about what defense counsel should have done and
did not do, including his failure to present an alibi defense and call witnesses. Defendant has not
overcome the strong presumption that defense counsel’s performance was within the range of
reasonable professional conduct. Gioglio, 296 Mich. App. at 22. Counsel’s decisions about what
arguments to make, what evidence to present, and whether to call witnesses are matters of trial
strategy, People v Russell, 297 Mich. App. 707, 716; 825 NW2d 623 (2012), and “this Court will
not second-guess defense counsel’s judgment on matters of trial strategy,” People v Benton, 294
Mich. App. 191, 203; 817 NW2d 599 (2011). The failure to present a witness can constitute
ineffective assistance only where it deprives the defendant of a substantial defense. People v
Payne, 285 Mich. App. 181, 190; 774 NW2d 714 (2009). “[D]efendant has the burden of
establishing the factual predicate for his claim of ineffective assistance of counsel[.]” People v
Hoag, 460 Mich. 1, 6; 594 NW2d 57 (1999).
Defendant has failed to substantiate his assertion that he had an alibi, and there is no
evidence that any witness existed who could have assisted in an alibi defense. Although
defendant identifies Candice Plant as an alibi witness, he has not provided a witness affidavit or
identified any other evidence of record establishing that Plant actually would have testified at
trial and provided favorable testimony. Absent such a showing, defendant has not established
that he was prejudiced by defense counsel’s failure to call Plant at trial. See People v. Ackerman,
257 Mich. App. 434, 455-456; 669 NW2d 818 (2003) (holding that the defendant had not
established a factual predicate for his claim that counsel was ineffective by not obtaining a
defense expert witness because defendant offered no proof that an expert witness would have
testified favorably if called by the defense).
The record also fails to support defendant’s claim that defense counsel was ineffective for
failing to call an expert. Defendant has not made an offer of proof regarding the substance of
any favorable testimony that an expert witness could have offered. See id. A defendant cannot
establish his claim of ineffective assistance of counsel using speculation that an expert would
have testified favorably and affected the outcome of the proceeding. Payne, 285 Mich. App. at
190. Moreover, defendant has failed to overcome the presumption that defense counsel’s
decision not to call an expert witness was reasonable trial strategy. Id. Through means of cross-
examination, defense counsel challenged the strength and reliability of the evidence and elicited
arguable bases for the jury to question the reliability of the evidence. Defendant has failed to
show that defense counsel’s strategy was objectively unreasonable, or that he was prejudiced by
the absence of an expert at trial.
Defendant also argues that defense counsel should have called him as a witness to
support an alibi defense. A criminal defendant has a fundamental constitutional right to testify at
trial. US Const, Am XIV; Const 1963, art 1, §§ 17, 20. The decision to testify or not to testify is
a strategic one “best left to an accused and his counsel.” People v Martin, 150 Mich. App. 630,
640; 389 NW2d 713 (1986). “Although counsel must advise a defendant of this right, the
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ultimate decision whether to testify at trial remains with the defendant.” People v Bonilla–
Machado, 489 Mich. 412, 419; 803 NW2d 217 (2011). “If the accused expresses a wish to testify
at trial, the trial court must grant the request, even over counsel’s objections.” People v
Simmons, 140 Mich. App. 681, 685; 364 NW2d 783 (1985). “[I]f defendant . . . decides not to
testify or acquiesces in his attorney’s decision that he not testify, the right will be deemed
waived.” Id. (citation and quotations omitted).
There is no basis for concluding that counsel’s performance deprived defendant of his
constitutional right to testify. There is no indication in the record that defendant expressed to
counsel a desire to testify. On the contrary, after the prosecution rested, defense counsel stated
on the record that she and defendant had discussed whether defendant was going to testify,
defendant was advised of his right to testify or not testify, and defendant agreed that he would
not testify. Defendant stated that he was not forced or threatened in any way in making his
decision not to testify, and that he believed that it was in his best interests to not testify.
Defendant never expressed disagreement with counsel’s statement that he did not wish to testify,
did not claim that he was ignorant of his right to testify, or that defense counsel had coerced him
into not testifying. The decision whether to call defendant as a witness was a matter of trial
strategy and defendant has not identified or offered any evidence to overcome the strong
presumption of sound strategy. People v Rockey, 237 Mich. App. 74, 76; 601 NW2d 887 (1999).
We also reject defendant’s argument that he was denied the effective assistance of
counsel because defense counsel failed to argue that the verdict was tainted by the fact that
argument concerning the admission of the shoeprint evidence occurred in the jury’s presence.
As previously explained, the dialogue did not deny defendant a fair trial. Therefore, defense
counsel’s failure to object was not objectively unreasonable. Further, because the trial court’s
instructions adequately protected defendant’s rights, defendant cannot demonstrate a reasonable
probability that, but for counsel’s failure to object, the result of the proceeding would have been
different.
We reject as well defendant’s claim that defense counsel was ineffective for failing to
object to the jury panel composition. As we previously explained, supra, defendant has failed to
present any evidence to support a prima facie violation of the fair cross-section requirement.
Hoag, 460 Mich. at 6; Traylor, 245 Mich. App. at 464. Therefore, defendant has not shown that,
but for counsel’s failure to pursue such a claim, it is reasonably probable that the result of the
proceeding would have been different.
G
Defendant raises additional cursory arguments about defense counsel’s failure to
investigate and challenge exculpatory “hard evidence” without providing any proper analysis.
Defendant also briefly raises an argument related to the sufficiency of the evidence underlying
his conviction. However, as we stated above, “[a]n appellant may not merely announce his
position and leave it to this Court to discover and rationalize the basis for his claims, nor may he
give only cursory treatment with little or no citation of supporting authority.” Kelly, 231 Mich
App at 640-641. “The failure to brief the merits of an allegation of error constitutes an
abandonment of the issue.” People v McPherson, 263 Mich. App. 124, 136; 687 NW2d 370
(2004). Additionally, an issue that is not raised in the statement of the questions presented is
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abandoned on appeal. See MCR 7.212(C)(5) (providing that a brief on appeal must contain a
statement of the questions involved); People v. McMiller, 202 Mich. App. 82, 83 n 1, 507 NW2d
812 (1993) (holding that an issue was abandoned when it was not raised in the statement of the
questions presented). Defendant failed to raise the issues regarding defense counsel’s failure to
investigate and challenge the exculpatory “hard evidence” and the sufficiency of the evidence
underlying his conviction in his statement of the questions presented. Consequently, defendant’s
remaining claims of ineffective assistance of counsel are abandoned. McPherson, 263 Mich. App.
at 136.
Affirmed.
/s/ Patrick M. Meter
/s/ Mark J. Cavanagh
/s/ Kurtis T. Wilder
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